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Balcero et al. v. Drummond Company, Inc.

Plaintiffs allege that Drummond joined with a terrorist paramilitary group to drive suspected guerillas out of the areas of Drummond’s Colombian mine operations. The paramilitaries killed hundreds of innocent civilians who lived in the area. The relatives of those murdered brought ATS, TVPA and Colombian wrongful death claims against Drummond and several of its officers.

Factual Background:

No later than 1997, plaintiffs' evidence indicates that Drummond officials made an alliance with the United Self-Defense Forces of Colombia (“AUC”), the umbrella paramilitary group in Colombia. In 2001, the U.S. Department of State designated the AUC a terrorist organization. Plaintiffs allege that in exchange for Drummond’s substantial financial support, logistical support, intelligence, and access to Drummond’s extensive land surrounding its coal mine and rail road line in Cesar Province, Colombia, the AUC would drive any guerilla forces out of the area. The guerillas, mainly from the FARC, were harassing Drummond’s coal shipments by attacking the rail line that transported Drummond’s coal from its mine in La Loma to its port near Cienega. The AUC then engaged in its trademark scorched earth tactics and terrorized towns along the rail line and killed innocent civilians to ensure that even those remotely sympathetic to the FARC would not offer safe haven or cooperation. The murdered Plaintiffs’ decedents in this case were all innocent civilians who were killed in the escalation of the civil war fueled by Drummond’s support to the AUC.

Legal Proceedings:

In May 2009, 592 Plaintiffs brought suit in U.S. federal court in Birmingham, Alabama under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA) for war crimes and extrajudicial killings, stemming from the murders of their 131 family members. Drummond moved for a dismissal arguing that, as a matter law, it could not be liable for the AUC’s war crimes and extrajudicial killings. The trial court expressed doubt about the claims, but permitted Plaintiffs to file an amended complaint to provide more details of the linkage between Drummond and the war crimes and extrajudicial killings, particularly with respect to the issue of intent. Plaintiffs filed their First Amended Complaint in December 2009, and Drummond renewed its motion to dismiss. On April 30, 2010, the District Court largely denied Drummond’s motion and permitted Plaintiffs’ claims to proceed on three theories of liability: that Drummond aided and abetted, conspired with, or ratified the AUC’s war crimes and extrajudicial killings.

Following several procedural issues that caused further delay, Plaintiffs filed their Second Amended Complaint, adding additional Plaintiffs and Defendants. At this point, the named Defendants were the Alabama-based parent company, Drummond Company, Inc. (DCI); Drummond Limited (DLTD), the Alabama subsidiary that operates the Colombian mine under the direction and control of DCI; Augusto Jimenez, the President of DLTD at all times relevant to Drummond’s support to the AUC; Mike Tracy, who held various positions with both DCI and DLTD during the years of Drummond’s support for the AUC; and Jim Adkins, the former CIA agent who was Drummond’s security chief in Colombia and, according to the evidence, worked with Jaime Blanco Maya, Drummond’s food service contractor, to develop ways to secretly funnel cash to the AUC. Adkins was dismissed for lack of personal jurisdiction.

The discovery process was unusually complex because the primary evidence for Plaintiffs’ case was the testimony of demobilized AUC commanders who resided in various Colombian prisons. Under the Colombian Justice and Peace process, which resulted in the voluntary demobilization of most of the AUC commanders, they are required to provide a full confession of their crimes in exchange for a reduced sentence. Several of the key AUC participants in the arrangement with Drummond were willing to testify and provided detailed declarations to Plaintiffs’ counsel. However, to ensure that the testimony could be used at a trial in a U.S. federal court, Plaintiffs’ counsel had to use the Letters Rogatory process. Under this procedure, the federal trial court formally requests through the U.S. State Department that the judicial officials in Colombia produce the specified witnesses in a Colombian court to provide testimony to a court reporter certified in the U.S. This process is notoriously slow, and there is no recourse if the Colombian government simply declined or failed to act on the requests. In this case, fortunately, after several difficult procedural hurdles were overcome, the Colombian authorities produced the main witnesses in Colombian courts, and counsel for Plaintiffs and Drummond were able to take their testimony.

Following the close of discovery on June 30, 2012, the Drummond Defendants filed four distinct motions for summary judgment. The essence of the summary judgment process is that the defendants argued that there was not sufficient evidence on one or more elements of the claims to permit the case to go to trial. Here, Plaintiffs responded with the overwhelming evidence they obtained on all the legal issues.

While these motions were pending, the Supreme Court issued its decision in Kiobel v. Royal Dutch Petroleum, Co., 133 S. Ct. 1659 (2013), which held that to be actionable, ATS "claims" must "touch and concern the territory of the United States...with sufficient force to displace the presumption against extraterritorial appplication." Given the change in law, the District Court ordered supplemental briefing to address the effect of Kiobel on the case.

The District Court granted summary judgment as to the ATS, TVPA, and Colombian wrongful death claims against all Defendants, thereby dismissing all claims in the case. Although Plaintiffs contended there was sufficient evidence of U.S. conduct, they nonetheless moved to vacate the summary judgment orders in light of the Kiobel decision in order to permit limited discovery regarding additional actions taken by Defendants in the U.S. The District Court denied the motion on November 5, 2013. Plaintiffs appealed and the 11th Circuit Court of Appeals affirmed the District Court's Ruligns. Plaintiffs petitioned the Supreme Court to grant Writ of Certiorari on November 27, 2015. In the meantime, 45 new Plaintiffs representing 33 murdered family members filed a new complaint that makes the same allegations as the main case.